Trademark Enforcement through Administrative Agencies May 02, 2013, Chicago IP in China.
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Transcript of Trademark Enforcement through Administrative Agencies May 02, 2013, Chicago IP in China.
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Trademark Enforcement through Administrative Agencies
May 02, 2013, ChicagoIP in China
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IP enforcement
• IP enforcement– Administrative proceedings – Court civil proceedings– Criminal prosecution– Mediation– Customs — stopping import and export of
infringing products– TM cancellation — recovering a mark
registered by another party
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IP enforcement
• Administrative Proceedings– Quicker and cheaper than using the courts – Administrative authorities accept a lower level of
evidence. – Administrative actions are often most suitable in
straightforward counterfeit cases, or cases in which the infringer is likely to settle the case quickly.
– Possible to transfer the case into criminal prosecution to effectively strike the infringement.
– Fast results.
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Administrative agencies competent in
IPR administrative enforcement • State IPRs Protection Working Group of 17 members
including State Administration for Industry and Commerce (SAIC), Ministry of Public Security, General Administration of Customs, SIPO, SFDA, etc.
• SIPO: coordinating IPR enforcement nationwide
• Ten agencies competent in IPR administrative enforcement.
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Trademark enforcement through administrative agencies
• Enforcement through AICs
• Enforcement through customs
• Enforcement through police department
• Joint enforcement through several administrative agencies
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Trademark cases investigated by AICs nationwide 2002-2011**
**From SAIC; Handover of 1,750 suspects to judicial authorities for criminal investigation; SPC: 12991 trademark cases were accepted by the court of the first instance (civil proceedings) in 2011
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Administrative proceedings before AICs against trademark infringements
• Upon the report/complaint made by anybody or right holders or any interested party;– Complaint in written form (usually);– Relevant information and evidence.
• Ex officio
• Local AICs at and above county level
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Administrative settlement and decision by AICs in trademark infringements
• Administrative measures may be taken by AICs– Inspection– Investigation– Seizure
• If infringement was committed, AICs– Order to stop the infringement act– Confiscate or destroy the infringement goods and tools
utilized for counterfeiting– Impose fines on offenders
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Evidence collection is crucial
Evidences should be collected:• Basic information about the infringer• Information about the infringement act (selling)
Case: • Radar speedometer • A company in Shenzhen exported the counterfeiting
product to Russia;• Trademark label and product were manufactured in
different places and only the product without trademark label was sold on the market in Shenzhen.
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Administrative proceedings before customs against trademark infringements
Detention of suspected infringing goods• Upon request by the holder of an IPR
– Application in written form;– Relevant evidentiary document;– Evidence proving the obvious existence of the fact of infringement;– Security.
• Discovering goods suspected of infringing a recorded IPR, the customs notify the holder of the right– Security by the holder of the IPR;
• Local customs at the port of entry or exit for detaining suspected infringing goods
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Administrative settlement and decision by customs in IPR infringement
• Administrative compulsory measures – Detention– Investigation
• Determining whether an infringement exists
• Confiscation (infringement is determined)
• Transferring the case to the police department for handling if discovering any suspected criminal offence
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IPR protection by Customs in 2012*
• Detention taken place: 18,300 times– exporting: 95.6%
• Items suspected of infringing IPR detained: 93,120,000– infringing exclusive trademark right: 88,210,000, 94%; – exporting: 92,000,000, 99.77%.
*From data released by General Administration of Customs on April 23, 2013
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Counterfeiting “LEVITRA” case by Shenzhen Custom
• In Feb., 2012, Shenzhen custom suspected a EMS package with reporting name of “herbal enhancement” from US.
• X-ray detector found a large amount of tablets inside.
• After opening the package, the customs found that 20,016 tablets labeled with “LEVITRA”, suspected of infringing the exclusive trademark right recorded by Bayer with General Administration of Customs.
• It confirmed that the suspected items infringed the exclusivity right of “LEVITRA” trademark owned by Bayer with value of 100,000 RMB .
• The case has transferred to the police department.
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Thank you!
Stephen Zou, Ph.D., LL.M.
Lung Tin International Intellectual Property Agent Ltd.
Tel: 86 10 84891188
Fax: 86 10 84891189
Email: [email protected]